People v. Anderson

• Decision Date: 23 July 2020
• Docket Number: S253227, S253227
• Citation: 9 Cal.5th 946,266 Cal.Rptr.3d 283,470 P.3d 2
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Vernon ANDERSON, Defendant and Appellant.

9 Cal.5th 946

470 P.3d 2

266 Cal.Rptr.3d 283

The PEOPLE, Plaintiff and Respondent,

v.Vernon ANDERSON, Defendant and Appellant.

S253227

S253227

Supreme Court of California.

July 23, 2020

John Ward, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala Harris and Xavier Becerra, Attorneys General, Gerald Engler, Chief Assistant Attorney General, Edward C. DuMont, State Solicitor General, Jeffrey M. Laurence, Assistant Attorney General, Samuel P. Siegel, Deputy State Solicitor General, Catherine A. Rivlin, Ann P. Wathen and Greg E. Zywicke, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court KRUGER, J.

A jury convicted defendant Vernon Anderson of several offenses, including five counts of second degree robbery. As to each of these five counts, the operative information alleged personal firearm use enhancements that would have increased Anderson's sentence by three, four, or 10 years as to each count. ( Pen. Code, § 12022.53, subd. (b) ; id. , § 12022.5, subd. (a).) But after the close of evidence, the trial court instructed the jury on a set of more serious, 25-year-to-life firearm enhancements based on a different theory: that Anderson was vicariously responsible for a coparticipant's harmful discharge of a firearm in the commission of a gang-related crime. ( Id., § 12022.53, subds. (d), (e).) One such vicarious firearm discharge enhancement had been alleged in connection with a different count of the information, but none had been alleged in connection with the robbery counts. The jury returned true findings, and the trial court enhanced Anderson's sentence for the robberies by five consecutive additional terms of 25 years to life. The Court of Appeal affirmed.

We granted review to consider whether the trial court properly imposed the five 25-year-to-life enhancements in connection with counts as to which the enhancements had not been alleged. The answer is no. Because Anderson did not receive adequate notice that the prosecution was seeking to impose this additional punishment on these counts, we reverse and remand for resentencing.

I.

Anderson, together with a group of at least five other young men, arrived at a house party in San Francisco. The host asked them to leave. They left briefly but then returned to the house with guns. Standing outside the house, the young men began demanding money from several partygoers, trying to go through their pockets and snatching their purses. One of the men — it is not clear who — then began shooting. Five of the bullets struck and killed Zachary Roche-Balsam, another partygoer who had been standing in front of the house.

Anderson was charged by information with the first degree murder of Roche-Balsam ( Pen. Code, § 187 ) and active participation in a street gang (id. , § 186.22, subd. (a)). Based on the robberies of other partygoers, Anderson was originally charged with four counts of second degree robbery (id. , § 212.5, subd. (c)), including two completed robberies and two attempts (id. , §§ 664, 212.5, subd. (c)). Finally, Anderson was charged with conspiracy to commit second degree robbery (id. , §§ 182, subd. (a)(1), 212.5, subd. (b)) and two counts of discharging a firearm at an inhabited dwelling (id. , § 246). During trial, the prosecution successfully moved to amend the original information to add another attempted robbery count, for a total of five robbery counts. Other than the additional robbery count (and the enhancements attached to it, which are described further below), this first amended information was substantively identical to the original.

For each of the substantive offenses charged, the information alleged various sentence enhancements. This case concerns firearm enhancements under Penal Code section 12022.53 ( section 12022.53 ). That provision "imposes sentence enhancements for firearm use applicable to certain enumerated felonies. [Citations.] These enhancements vary in length, corresponding to various uses of a firearm." ( People v. Garcia (2002) 28 Cal.4th 1166, 1171, 124 Cal.Rptr.2d 464, 52 P.3d 648.) In connection with the murder count, which was count 1, the first amended information alleged Anderson was subject to a 25-year-to-life enhancement based on vicarious liability for the injurious discharge of a firearm by a coparticipant in a gang-related offense. ( § 12022.53, subds. (d), (e).) By contrast, in connection with each of the robbery counts, which were counts 3 through 7, the information alleged two personal use firearm enhancements — one a 10-year enhancement (id. , subd. (b)) and the other a three-, four-, or 10-year enhancement (id. , § 12022.5, subd. (a)). None of the five robbery counts included a 25-year-to-life vicarious firearm discharge enhancement allegation under section 12022.53, subdivision (e) ( section 12022.53(e) ).

Before trial, the prosecution offered to strike all charges and enhancements if Anderson pleaded guilty to second degree murder with a 15-year-to-life penalty, as well as to one count of robbery and one count of being an active participant in a street gang. Anderson rejected the deal. At that time, the prosecutor stated in open court that, by his calculations, Anderson, then age 25, faced approximately "60 years to life or more" if he lost at trial — a calculation apparently based on the premise that Anderson faced only one 25-year-to-life enhancement, the enhancement alleged in connection with the murder count.

At trial, the evidence connected Anderson to the robberies outside the house party in San Francisco. No witness could clearly identify the person who shot and killed Roche-Balsam, but witnesses identified Anderson as one of several people holding a gun and robbing partygoers. An expert witness opined that Anderson was a member of a gang called Randolph Mob and that the crimes were gang related.

The trial court instructed the jury that it could find that the prosecution proved the elements of the 25-year-to-life vicarious firearm discharge enhancements under section 12022.53(e) as to the robbery counts — even though they were not alleged in the operative information — and approved verdict forms to the same effect. The record does not show definitively how this occurred, but it appears the prosecution requested this instruction as to the robbery counts after the close of the evidence. The jury convicted Anderson on all 10 counts and returned true findings on all the enhancement allegations contained in the verdict forms.

At the sentencing hearing the prosecution initially asked the court to impose the less severe 10-year personal firearm-use enhancements, which had been pleaded in the information, and to "[i]mpose and stay" the 25-year-to-life vicarious firearm discharge enhancements as to the robbery counts.

Uncertain whether the court had the authority to impose and stay the enhancements, the defense asked the court to strike them altogether. After a short recess to study the issue, the prosecution pointed the court to People v. Palacios (2007) 41 Cal.4th 720, 62 Cal.Rptr.3d 145, 161 P.3d 519, which held that Penal Code section 654 does not preclude imposing multiple section 12022.53 enhancements, even when the enhancements are based on a single shot fired at a single victim. ( Palacios , at pp. 723–733, 62 Cal.Rptr.3d 145, 161 P.3d 519.) Based on Palacios , the prosecution asked the trial court to impose the 25-year-to-life enhancements as to the five robbery counts after all. The defense objected on the ground that the prosecution's recommended sentence would constitute cruel and unusual punishment. (See U.S. Const., 8th Amend.) The court overruled the objection and sentenced Anderson to a total of 189 years to life, including a total of 125 years to life for the enhancements corresponding to the five robbery counts.

On appeal, Anderson argued for the first time that the trial court erred in imposing the five unpleaded 25-year-to-life enhancements because the enhancements had not been adequately pleaded in the charging document. Anderson relied on People v. Mancebo (2002) 27 Cal.4th 735, 117 Cal.Rptr.2d 550, 41 P.3d 556 ( Mancebo ), where we held that a court could not impose a sentence under the "One Strike" law ( Pen. Code, § 667.61 ) based on a multiple-victim circumstance not alleged in the accusatory pleading. ( Mancebo , at p. 739, 117 Cal.Rptr.2d 550, 41 P.3d 556.)

The Court of Appeal rejected Anderson's argument in a footnote of its unpublished opinion ( People v. Anderson 2018 WL 6039674 (Cal.App.1 Dist. Nov. 19, 2018, A136451) ), concluding "defendant was properly sentenced in conformity with People v. Riva (2003) 112 Cal.App.4th 981, 5 Cal.Rptr.3d 649."¹ In Riva , the Court of Appeal held that an information adequately pleaded a section 12022.53, subdivision (d) ( section 12022.53(d) ) firearm enhancement as to one count by alleging the enhancement as to other counts based on the same set of facts. ( Riva , at pp. 1000–1003, 5 Cal.Rptr.3d 649.) The court distinguished Mancebo on the ground that the enhancement at issue in that case had not been pleaded as to any count, while in Riva the relevant enhancement "was pled by number and description as to some of the counts in the information, just not the one on which the trial court imposed it." ( Riva , at p. 1002, 5 Cal.Rptr.3d 649.)

We granted review to decide whether the trial court erred by imposing firearm enhancements under section 12022.53(e) that were not pleaded in connection with the relevant counts.

II.

As a rule, all sentence enhancements "shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." ( Pen. Code, § 1170.1, subd. (e) ( section 1170.1(e) ).) Firearm enhancements under section 12022.53(e) are no exception to this rule. Another statutory pleading provision, specific to section 12022.53 enhancements, restates the same basic point: For any of the firearm enhancements prescribed by section 12022.53 to...